BUILDING SERVICES BOARD and CRAMPHORN
[2016] WASAT 57
•20 MAY 2016
BUILDING SERVICES BOARD and CRAMPHORN [2016] WASAT 57
| STATE ADMINISTRATIVE TRIBUNAL | Citation No: | [2016] WASAT 57 | |
| BUILDING SERVICES (REGISTRATION) ACT 2011 | |||
| Case No: | VR:22/2016 | DETERMINED ON THE DOCUMENTS | |
| Coram: | JUSTICE J C CURTHOYS (PRESIDENT) | 20/05/16 | |
| 24 | Judgment Part: | 1 of 1 | |
| Result: | Disciplinary matters found to exist in conduct of practitioner under the Building Services (Complaints Resolution and Administration) Act 2011 (WA) and the Building Services (Registration) Act 2011 (WA) Global fine of $20,000 imposed Practitioner to pay Building Services Board's costs | ||
| B | |||
| PDF Version |
| Parties: | BUILDING SERVICES BOARD GARY ALAN CRAMPHORN |
Catchwords: | Conviction of offence against the Building Services (Complaints Resolution and Administration) Act 2011 Breach of the Building Services (Registration) Act 2011 Breach of the Home Building Contracts Act 1991 - Disciplinary orders sought by Building Services Board Penalty |
Legislation: | Building Services (Complaints Resolution and Administration) Act 2011 (WA), s 41(2), s 51(3)(a), s 51(3)(b), Pt 4, Div 4 Building Services (Registration) Act 2011 (WA), s 18(1)(b), s 51(1)(f), s 52(1), s 53, s 53(1)(a)(ii), s 56(2)(a), s 58, s 58(1) Building Services (Registration) Regulations 2011 (WA), reg 18 Home Building Contracts Act 1991 (WA), s 10(1)(a)(i) State Administrative Tribunal Act 2004 (WA), s 87(1), s 87(2) |
Case References: | Briginshaw v Briginshaw (1938) 60 CLR 336 Builders' Registration Board of Western Australia and Elliott [2009] WASAT 44 Legal Profession Complaints Committee and Wells [2014] WASAT 112 Legal Profession Complaints Committee and Wells [2014] WASAT 112 (S) Medical Board of Western Australia and Roberman [2005] WASAT 81 (S) NOM v Director of Public Prosecutions (2012) 38 VR 618 Paridis v Settlement Agents Supervisory Board [2007] WASCA 97 Quinn v Law Institute of Victoria [2007] VSCA 122 Re Lamperd [1983] 46 ALR 371 Rejfek v McElroy (1965) 112 CLR 517 Western Australian Planning Commission v Questdale Holdings Pty Ltd [2016] WASCA 32 |
Orders | 1. The Tribunal finds that a disciplinary matter exists in that: ,(a) after registration Mr Cramphorn was convicted of an offence against the Building Services (Complaints Resolution and Administration Act) 2011 (WA); s 53(1)(a)(ii) of the Building Services (Registration) Act 2011 (WA);,(b) Mr Cramphorn does not satisfy the financial requirements pursuant to s 18(1)(b) of the Building Services (Registration Act) 2011 (WA) Act; s 53(1)(b) of the Building Services (Registration Act) 2011 (WA);,(c) Mr Cramphorn failed to comply with an order of the Building Commissioner under the Building Services (Complaints Resolution and Administration Act) 2011 (WA); s 53(1)(l) of the Building Services (Registration Act) 2011 (WA); and,(d) Mr Cramphorn if a building service contractor, failed to ensure that a building service carried out by him had been properly managed and supervised; s 53(1)(f) of the Building Services (Registration Act) 2011 (WA). ,2. Mr Cramphorn is fined $20,000.,3. Mr Cramphorn is to pay the Building Services Board's costs of $3,200. |
Summary | The Building Services Board filed an application on 8 February 2016 under s 56(2)(a) of the Building Services (Registration) Act 2011 (WA) seeking disciplinary orders against Mr Gary Alan Cramphorn. ,Mr Cramphorn did not take any part in the proceedings.,The Tribunal considered the 10 allegations made by the Building Services Board and the disciplinary matters that may exist in respect of Mr Cramphorn's conduct.,The Tribunal found that disciplinary matters did exist in eight of the allegations and considered the appropriate penalty to maximise the protection of the public.,Given that Mr Cramphorn's building practitioner and building contractor licences have expired, the Tribunal determined that the appropriate penalty was the imposition of a fine. ,In consideration of the seriousness of Mr Cramphorn's conduct, a global penalty of $20,000 was imposed and Mr Cramphorn was ordered to pay the Board's costs. |
JURISDICTION : STATE ADMINISTRATIVE TRIBUNAL ACT : BUILDING SERVICES (REGISTRATION) ACT 2011 CITATION : BUILDING SERVICES BOARD and CRAMPHORN [2016] WASAT 57 MEMBER : JUSTICE J C CURTHOYS (PRESIDENT) HEARD : DETERMINED ON THE DOCUMENTS DELIVERED : 20 MAY 2016 FILE NO/S : VR 22 of 2016 BETWEEN : BUILDING SERVICES BOARD
- Applicant
AND
GARY ALAN CRAMPHORN
Respondent
Catchwords:
Conviction of offence against the Building Services (Complaints Resolution and Administration) Act 2011 - Breach of the Building Services (Registration) Act 2011 -Breach of the Home Building Contracts Act 1991 - Disciplinary orders sought by Building Services Board - Penalty
Legislation:
Building Services (Complaints Resolution and Administration) Act 2011 (WA), s 41(2), s 51(3)(a), s 51(3)(b), Pt 4, Div 4
Building Services (Registration) Act 2011 (WA), s 18(1)(b), s 51(1)(f), s 52(1), s 53, s 53(1)(a)(ii), s 56(2)(a), s 58, s 58(1)
Building Services (Registration) Regulations 2011 (WA), reg 18
Home Building Contracts Act 1991 (WA), s 10(1)(a)(i)
State Administrative Tribunal Act 2004 (WA), s 87(1), s 87(2)
Result:
Disciplinary matters found to exist in conduct of practitioner under the Building Services (Complaints Resolution and Administration) Act 2011 (WA) and the Building Services (Registration) Act 2011 (WA)
Global fine of $20,000 imposed
Practitioner to pay Building Services Board's costs
Summary of Tribunal's decision:
The Building Services Board filed an application on 8 February 2016 under s 56(2)(a) of the Building Services (Registration) Act 2011 (WA) seeking disciplinary orders against Mr Gary Alan Cramphorn.
Mr Cramphorn did not take any part in the proceedings.
The Tribunal considered the 10 allegations made by the Building Services Board and the disciplinary matters that may exist in respect of Mr Cramphorn's conduct.
The Tribunal found that disciplinary matters did exist in eight of the allegations and considered the appropriate penalty to maximise the protection of the public.
Given that Mr Cramphorn's building practitioner and building contractor licences have expired, the Tribunal determined that the appropriate penalty was the imposition of a fine.
In consideration of the seriousness of Mr Cramphorn's conduct, a global penalty of $20,000 was imposed and Mr Cramphorn was ordered to pay the Board's costs.
Category: B
Representation:
Counsel:
Applicant : Ms A Sukoski
Respondent : No Appearance
Solicitors:
Applicant : Department of Commerce
Respondent : N/A
Case(s) referred to in decision(s):
Briginshaw v Briginshaw (1938) 60 CLR 336
Builders' Registration Board of Western Australia and Elliott [2009] WASAT 44
Legal Profession Complaints Committee and Wells [2014] WASAT 112
Legal Profession Complaints Committee and Wells [2014] WASAT 112 (S)
Medical Board of Western Australia and Roberman [2005] WASAT 81 (S)
NOM v Director of Public Prosecutions (2012) 38 VR 618
Paridis v Settlement Agents Supervisory Board [2007] WASCA 97
Quinn v Law Institute of Victoria [2007] VSCA 122
Re Lamperd [1983] 46 ALR 371
Rejfek v McElroy (1965) 112 CLR 517
Western Australian Planning Commission v Questdale Holdings Pty Ltd [2016] WASCA 32
Introduction
1 The Building Services Board (the Board) filed an application on 8 February 2016 under s 56(2)(a) of the Building Services (Registration) Act 2011 (WA) (the BSR Act), seeking disciplinary orders against Mr Gary Alan Cramphorn.
The Board's allegations
2 The Board made the following 10 allegations in its application:
Allegation 1
It is alleged, pursuant to section 53(1)(a)(ii) of the BSR Act, that [Mr Cramphorn] has been convicted of an offence pursuant to section 71(2) of the Building Services (Complaints Resolution and Administration) Act 2011 (BSCRA Act).
Allegation 2
It is alleged, pursuant to section 53(1)(b) of the BSR Act, that [Mr Cramphorn] does not satisfy the financial requirements pursuant to section 18(1 )(b) in that [Mr Cramphorn] does not have the capacity to meet his debts as and when they fall due as per regulation 18(1) of the Building Services (Registration) Regulations 2011.
Allegation 3 and 4
It is alleged, pursuant to section 53(1)(l) of the BSR Act, that [Mr Cramphorn] failed to comply with two separate orders of the Building Commissioner made under the BSCRA Act.
Allegation 5
It is alleged, pursuant to section 53(1)(e) of the BSR Act, that [Mr Cramphorn] was negligent in connection with carrying out a building service at site 2, in that [Mr Cramphorn] entered into a contract which provided that [Mr Cramphorn] was entitled to demand or receive from the owner a deposit in excess of 6.5% of the total amount payable under the contract, contrary to [Mr Cramphorn's] obligations under section 10(1)(a)(i) of the Home Building Contracts Act 1991 (HBC Act).
Allegation 6
It is alleged, pursuant to section 53(1)(f) of the BSR Act, that [Mr Cramphorn] failed to ensure that a building service at site 2 has been properly managed and supervised.
Alternatively, it is alleged, pursuant to section 53(1)(e) of the BSR Act, that [Mr Cramphorn] was negligent or incompetent in connection with carrying out a building service at site 2.
Allegation 7
It is alleged, pursuant to section 53(1)(l) of the BSR Act, that [Mr Cramphorn] failed to comply with a HBWC Remedy Order of the Building Commissioner under the BSCRA Act.
Allegation 8
It is alleged, pursuant to section 53(1)(l) of the BSR Act, that [Mr Cramphorn] failed to comply with a HBWC Remedy Order of the Building Commissioner under the BSCRA Act.
Allegation 9
It is alleged, pursuant to section 53(1)(e) of the BSR Act, that [Mr Cramphorn] was negligent in connection with carrying out a building service at site 4.
Allegation 10
It is alleged, pursuant to section 53(1)(l) of the BSR Act, that [Mr Cramphorn] failed to comply with a HBWC Remedy Order of the Building Commissioner under the BSCRA Act.
Procedure
3 Mr Cramphorn did not take any part in the proceedings.
4 The bundle of documents filed by the Board was admitted into evidence as Exhibit A.
5 These reasons substantially adopt the detailed submissions filed by the Board.
Mr Cramphorn's registration
6 On 31 July 2000, Mr Cramphorn was granted registration as a building service contractor (Registration No. BC10775) and a building service practitioner (Registration No. BP10775). Both registrations expired on 1 February 2016, and no application for renewal has been received on behalf of Mr Cramphorn.
7 Mr Cramphorn traded as Xtra Construction.
Breach of the BSR Act
8 On 4 September 2015, Mr Cramphorn was convicted in the Perth Magistrates Court, in his absence, of failing to comply with a direction under P4, Div 4 of the Building Services (Complaints Resolution and Administration) Act 2011 (WA) (the BSCRA Act). Mr Cramphorn was fined $1,000 and was ordered to pay costs of $564.60 (Exhibit A page 1). The prosecution notice and the record of the penalty appear in Exhibit A pages 1A1B).
Site 1 11 Currie Street, Waikiki
9 On or about 26 February 2014, Mandy and Chilai Nganwoo (the owners of site 1) entered into a written lump sum building contract with Mr Cramphorn for an extension and kitchen renovation at site 1 to the value of $53,075 (Exhibit A pages 2753).
10 In April 2014, Mr Cramphorn commenced work at site 1 (Exhibit A page 14).
11 On or about 28 May 2014, Mr Cramphorn ceased work at site 1 (Exhibit A page 14).
12 On 22 September 2014, the owners of site 1 sent a notice of proposed complaint to Mr Cramphorn (Exhibit A pages 16 and 55).
13 As no response was received from Mr Cramphorn, on 20 October 2014, the owners of site 1 lodged a complaint with the Building Commission in relation to the incomplete work (Exhibit A page 16).
14 On or about 29 January 2015, Mr Cramphorn was served by post with a 'home building work contract' (HBWC) remedy Order No. 2 of 2015 (Exhibit A page 58) in relation to site 1 under the provisions of s 41(2) of the BSCRA Act which stated that:
[Mr Cramphorn] is to bring to completion the building works required under the home building work contract dated 26 February 2014 within 45 days of the date of the order.
(Exhibit A pages 5859)
15 On or about 13 April 2015, pursuant to s 51(3)(a) of the BSCRA Act, HBWC Order No. 2 of 2015 was revoked by the Building Commissioner due to Mr Cramphorn's failure to comply with the order.
16 On or about 13 April 2015, pursuant to s 51(3)(b) of the BSCRA Act, HBWC Order No. 11 of 2015 was issued to Mr Cramphorn requiring him to pay the owners of site 1 $34,492.50, being the reasonable costs of remedying the building service at site 1 (Exhibit A page 66).
17 Mr Cramphorn did not comply with HBWC Order No. 11 of 2015 (Exhibit A page 19 and pages 7176).
18 On 20 July 2015, the owners of site 1 filed a creditor's petition with the Federal Court of Australia to declare Mr Cramphorn bankrupt (Exhibit A pages 27).
19 The petition was heard on 5 October 2015, and the court issued a sequestration order declaring Mr Cramphorn bankrupt (Exhibit A page 9).
20 The Official Trustee in Bankruptcy has been appointed as trustee to manage Mr Cramphorn's financial affairs (Exhibit A page 10).
Site 2 - 17 Silver Grove, Warnbro
21 On or about 16 December 2013, Mr Cramphorn provided Robert and Ruth Gilbert (the owners of site 2) with a quotation for proposed additions and alterations at site 2 (Exhibit A page 77 and pages 8788).
22 The quotation was in two parts. The first part was valued at $130,328, and the second part related to the stripping of the existing roof tiles and replacing them with new concrete tiles for the sum of $10,450.
23 On or about 16 December 2013, the owners of site 2 accepted the first part of the quote valued at $130,328 (Exhibit A page 77).
24 The site 2 contract provided that Mr Cramphorn was to be paid a deposit of $7,819.68 upon signing, which represented 6% of the total contract value (Exhibit A pages 77 and 97).
25 On or about 21 December 2013, the owners of site 2 accepted the second part of the quote for the roof works to the value of $10,450 (Exhibit A pages 77 and 101).
26 In relation to the second part of the quotation the owners were required to pay a deposit of $4,180 for the roof tiling upon signing the quote, which represented 40% of the total value of the roof tiling work.
27 On or about 2 May 2014, Bankwest authorised payment to Mr Cramphorn for the deposit for the extension and the roof tiling which totalled $11,999.68 (Exhibit A page 103).
28 The last contact the owners of site 2 had with Mr Cramphorn was on 8 August 2014, and by the end of August the work had completely ceased on site (Exhibit A pages 8081).
29 The owners of site 2 made unsuccesssful attempts to contact Mr Cramphorn (Exhibit A page 81). On 7 November 2014, the owners of site 2 sent a notice of proposed complaint to Mr Cramphorn at his business address (Exhibit A pages 82 and 108).
30 On 2 December 2014, the envelope and its contents were returned to the owners of site 2 as being unclaimed (Exhibit A page 82).
31 On 19 December 2014, the owners of site 2 lodged a complaint with the Building Commission (Exhibit A page 82).
32 On or about 25 February 2015, Mr Cramphorn was served with a HBWC remedy order No. 8 of 2015 in relation to site 2 which stated that:
[Mr Cramphorn] is to bring to completion the building works required under the home building work contract dated 16 December 2013 within 28 days of the date of the order.
(Exhibit A pages 83 and 114)
33 On 18 March 2015, the owners of site 2 engaged an independent inspector to undertake an inspection of the building works completed by Mr Cramphorn. The inspection found various defects which are outlined in Exhibit A at pages 116147.
34 On 28 May 2015, a building inspector employed by the Building Commission attended site 2 and identified 10 workmanship issues (Exhibit A pages 148173). The building inspector also confirmed that Mr Cramphorn had not completed the building works as per HBWC Order No. 8 of 2015.
Site 3 - 42 Summerton Road, Calista
35 On or about 22 October 2013, Samantha Jukich (the owner of site 3) entered into a written lump sum building contract with Mr Cramphorn for a granny flat at the rear of the property at site 3 to the value of $78,000 (Exhibit A pages 183196). The granny flat was intended for her parents, Luka and Damaris Jukich.
36 Work commenced on site around the end of February 2014. Around June 2014 was the last time Mr Cramphorn was seen on site (Exhibit A pages 176177)
37 The owner of site 3 attempted unsuccessfully to contact Mr Cramphorn between August 2014 and November 2014 (Exhibit A page 178).
38 On 15 December 2014, the owners of site 3 sent Mr Cramphorn a notice of proposed complaint in relation to the unfinished work at site 3 (Exhibit A page 198).
39 On or about 9 January 2015, the owner of site 3 lodged a complaint with the Building Commission (Exhibit A page 179).
40 On or about 25 February 2015, Mr Cramphorn was served with a HBWC remedy order No. 7 of 2015 in relation to site 3 which stated that:
[Mr Cramphorn] is to bring to completion the building works required under the home building work contract dated 22 October 2013 within 28 days of the date of the order.
(Exhibit A page 200)
41 On 28 May 2015, an inspector employed by the Building Commission attended site 3 and confirmed that the work had not been brought to completion (Exhibit A page 148; see also pages 179180 and 205214).
Site 4 - 27 Studzor Street, Warnbro
42 On or about 6 June 2013, Adam, Gordon and Sandra Palmer (the owners of site 4) entered into a written lump sum building contract with Mr Cramphorn for renovations at site 4 to the value of $155,650 (Exhibit A pages 228233). The building work was to consist of a renovation to the kitchen and living areas, and a specially designed bathroom to accommodate one of the owners who was disabled and in a wheelchair.
43 On 7 June 2013, the owners of site 4 paid the deposit (Exhibit A page 233).
44 The building work commenced early in July 2013 (Exhibit A page 239).
45 Mr Cramphorn did not provide the owners of site 4 with a copy of the HII certificate. In April 2014, the owners obtained a copy of the HII certificate from Bankwest (Exhibit A pages 217218).
46 Around July 2014, work ceased at site 4 (Exhibit A page 219).
47 Mr Cramphorn failed to respond to texts from the owners of site 4 (Exhibit A page 219).
48 On 15 September 2014, the owners of site 4 emailed Mr Cramphorn a notice of proposed complaint (Exhibit A page 236).
49 On 30 December 2014, the owners of site 4 lodged a complaint with the Building Commission in relation to Mr Cramphorn not completing the works (Exhibit A page 220).
50 On or about 25 February 2015, Mr Cramphorn was served with a HBWC remedy Order No. 6 of 2015 in relation to site 4 which stated that:
[Mr Cramphorn] is to bring to completion the building works required under the home building work contract dated 6 June 2013 within 28 days of the date of the order.
(Exhibit A page 239)
51 On 28 May 2015, an inspector employed by the Building Commission attended site 4 and confirmed that the work had not been brought to completion (Exhibit A page 198; see also page 221 and pages 2412).
Onus and standard
52 In Legal Profession Complaints Committee and Wells [2014] WASAT 112 at [8] and [9] the Tribunal stated:
The Committee bears the onus of proof. It is to the civil, not criminal standard but the principles of Briginshaw v Briginshaw (1938) 60 CLR 336 (Briginshaw) apply. That is, while needing to be proved only on the balance of probabilities, the nature and seriousness of the allegations are relevant to the question whether the issues are proved to the reasonable satisfaction of the Tribunal and the process by which reasonable satisfaction is attained.
By reason of the nature of the allegations, the Tribunal must feel an actual persuasion of the occurrence or existence of the relevant facts in determining whether or not the case against the practitioner is made out: Medical Board of Western Australia and Wright [2010] WASAT 48 at [31]; and see Medical Board of Western Australia and Bham [2006] WASAT 190 at [144].
(See also Rejfek v McElroy (1965) 112 CLR 517 (Reifek))
53 In Briginshaw v Briginshaw (1938) 60 CLR 336 at 362, Dixon J, as he then was, observed '[i]n such matters ''reasonable satisfaction'' should not be produced by inexact proofs, indefinite testimony or indirect inferences'.
54 The standard of proof required in a civil case where serious allegations are made was stated in Rejfek where Barwick CJ, Kitto, Taylor, Menzies and Windyer JJ observed at 521 that:
The 'clarity' of the proof required, where so serious a matter as fraud is to be found, is an acknowledgment that the degree of satisfaction for which the civil standard of proof calls may vary according to the gravity of the fact to be proved. …
But the standard of proof to be applied in a case and the relationship between the degree of persuasion of the mind according to the balance of probabilities and the gravity or otherwise of the fact of whose existence the mind is to be persuaded are not to be confused.
55 In NOM v Director of Public Prosecutions (2012) 38 VR 618 at [124], the Victorian Court of Appeal stated:
… mere mechanical comparison and probabilities independent of a reasonable satisfaction will not justify a finding of fact. The fact finder must feel an actual persuasion of the occurrence or existence of the fact in issue before it can be found. Where, as in the present case, the standard of proof is to be applied to circumstantial evidence, satisfaction as to a reasonable and definite inference is required.
Legislation
56 Section 52(1) of the BSR Act provides:
This Part applies, with any necessary modifications, to a former registered building service provider in relation to conduct occurring while the person was a registered building service provider in the same way as it applies to a person who is a registered building service provider.
57 Section 53 of the BSR Act provides:
(1) The following are disciplinary matters
(a) that after registration the registered building service provider has been convicted
…
(ii) of an offence against this Act, the Building Services (Complaint Resolution and Administration) Act 2011, the Building Act 2011, the Local Government (Miscellaneous Provisions) Act 1960 or the Home Building Contracts Act 1991; or
…
(b) that the registered building service provider does not satisfy one or more of the matters referred to in section 17(1) or 18(1), as the case may be, that must be satisfied if an application for registration or renewal of registration is to be granted;
…
(e) that the registered building service provider has been negligent or incompetent in connection with carrying out a building service;
(f) that the registered building service provider, if a building service contractor, has failed to ensure that a building service carried out by the provider has been properly managed and supervised;
…
(l) that the registered building service provider has failed to comply with an order of the Board or the State Administrative Tribunal under this Act or an order of the Building Commissioner or the State Administrative Tribunal under the Building Services (Complaint Resolution and Administration) Act 2011;
…
(2) A reference in subsection (1)(a) to a conviction includes
(a) a finding of guilt, or the acceptance of a guilty plea, whether or not a conviction is recorded; and
(b) a conviction before commencement of this section.
…
58 Section 18(1)(b) of the BSR Act provides:
The Board must register, or renew the registration of, an applicant as a building service contractor in each class of building service contractor applied for if the Board is satisfied that the applicant satisfies the financial requirements, if any, prescribed by the regulations for that class of building service contractor[.]
59 Section 58 of the BSR Act provides:
(1) If, in a proceeding commenced by an allegation under this Act, the State Administrative Tribunal is satisfied that a disciplinary matter exists in respect of a registered building service provider, the Tribunal may do one or more of the following
(a) decline to make an order under this section;
(b) order the Board to amend the registration of the provider;
(c) caution or reprimand the provider;
(d) impose a condition on the registration of the provider, or amend an existing condition;
(e) where the provider is a building service practitioner, order that the provider undertake and complete a specified further course of training or education;
(f) where the provider is a building service contractor, order that a nominated supervisor of the provider undertake and complete a specified further course of training or education;
(g) order that the registration of the provider be suspended for a period, not exceeding 2 years, specified in the order;
(h) order that the provider’s registration be cancelled and name be removed from the register;
(i) if the Tribunal makes its finding on a ground referred to in section 53(1)(c) to (m), order that the provider pay to the Building Commissioner a penalty of a fine not exceeding $25 000.
(2) An order referred to in subsection (1)(g) or (h) may be in relation to a provider’s registration generally or in relation to registration in a class or classes of building service practitioner or building service contractor specified in the order.
(3) If, in a proceeding commenced by an allegation under this Act against a person who was a registered building service provider when the disciplinary matter allegedly occurred but who is no longer a registered building service provider, the State Administrative Tribunal is of the opinion that a disciplinary matter exists in respect of the person, the only powers that the Tribunal may exercise are the powers in subsection (1)(a), (c) and (i).
60 Section 10(1)(a)(i) of the Home Building Contracts Act 1999 (WA) provides:
A builder must not enter into a contract which provides that the builder is entitled to demand or receive from the owner any payment
(a) before the commencement of the home building work to which the contract relates unless the payment is
(i) a deposit of not more than 6.5% of the total amount payable to the builder under the contract for the home building work[.]
The disciplinary matters alleged by the Board
62 The Board alleges that the following disciplinary matters exist in respect of Mr Cramphorn:
a. that after registration the registered building service provider [Mr Cramphorn] has been convicted of an offence against the BSCRA Act: BSR Act s53(1)(a)(ii) (refer to allegation 1);
b. that the registered building service provider [Mr Cramphorn] does not satisfy the financial requirements pursuant to s18(1)(b) of the BSR Act: BSR Act s53(1)(b) (refer to allegation 2);
c. that the registered building service provider [Mr Cramphorn] has failed to comply with an order of the Building Commissioner under the BSCRA; BSR Act s53(1)(l) (refer to allegations 3, 4, 7, 8 and 10);
d. that the registered building service provider [Mr Cramphorn] has been negligent or incompetent in connection with carrying out a building service: BSR Act s53(1)(e) (refer to allegations 5 and 9); and
e. that the registered building service provider,[Mr Cramphorn] if a building service contractor, has failed to ensure that a building service carried out by the provider [Mr Cramphorn] has been properly managed and supervised: BSR Act, s53(1 )(f) (refer to allegation 6).
Convicted of an offence against the BSCRA Act
63 The Tribunal finds that by virtue of Mr Cramphorn's conviction of an offence against the BSCRA Act, a disciplinary matter exists in respect of Mr Cramphorn pursuant to s 53(1)(a)(ii) of the BSR Act.
Does not satisfy the requirements of registration
64 Section 53(1)(b) of the BSR Act states that a disciplinary matter exists where the building service provider does not satisfy one or more of the matters referred to in s 17(1) or s 18(1) of the BSR Act, as the case may be, that must be satisfied if an application for registration or renewal of registration is to be granted.
65 For the purposes of s 18(1)(b) of the BSR Act the financial requirements prescribed for registration as a building contractor are that the builder must have the capacity to meet debts as and when they fall due (reg 18 of the Building Services (Registration) Regulations 2011(WA)).
66 The Federal Court of Australia has issued a sequestration order declaring Mr Cramphorn bankrupt.
67 The Tribunal finds that by virtue of Mr Cramphorn's declaration of bankruptcy, Mr Cramphorn does not have the capacity to meet debts as and when they fall due. Accordingly, there is a disciplinary matter under s 53(1)(b) of the BSR Act.
Noncompliance with an order of the Building Commissioner
68 Across all four sites the subject of these disciplinary proceedings, Mr Cramphorn failed to comply with a HBWC Order that was issued by the Building Commissioner.
69 TheTribual finds that a disciplinary matter exists in respect of Mr Cramphorn pursuant to s 53(1)(l) of the BSR Act.
Negligence
70 The Board submits that negligence for the purposes of s 53(1)(e) of the BSR Act is simply the failure to do, in all the circumstances, that which a reasonably competent registered builder would have done: Re Lamperd [1983] 46 ALR 371 at 377.
71 The Board submitted that:
63. The approach preferred in Re Lamperd (at 377) was:
to seek to define the standard of care required, departure from which will be negligent rather than to nominate a degree of departure which is necessary to make the negligence an offence.
64. In Builders' Registration Board of Western Australia and Elliott [2009] WASAT 44 at [59] the Tribunal considered what constitutes professional negligence. In the Tribunal's view it had been established 'that the standard required is the exercise of due care, skill and diligence, which requires the bringing to the task in hand the competence and skill usually employed by members of the particular profession.'
65. In relation to allegation 5, s 10(1 )(a)(i) of the Home Building Contracts Act 1991 (the HBC Act) provides that a builder must not enter into a contract which provides that the builder is entitled to demand or receive from the owner any payment before the commencement of the home building work to which the contract relates unless the payment is a deposit of not more than 6.5% of the total amount payable under the contract for the home building work.
66. As per paragraphs 18 to 24 above, the owners of site 2 paid a deposit that amounted to 8.5% of the total amount payable under the contract.
67. In relation to allegation 9, s 25C(2) of the HBC Act provides that a builder must not perform residential building work under a residential building work contract unless the owner has been furnished, prior to a demand from the builder for any payment in relation to the residential building work including any deposit payable, with a certificate of HII.
68. As per paragraphs 40 to 43 above, the respondent demanded a payment under the contract on 7 June 2013, and the HII policy was issued on 27 June 2013.
69. The owners of site 4 were never provided with a copy of the HII certificate by the respondent.
70. In relation to each negligence allegation, the applicant contends that the first respondent's conduct fell short of the standard of care to be expected of a building service contractor.
72 The Tribunal is not persuaded that a failure to comply with the HBC Act constitutes negligence. The Tribunal is satisfied that the factual matters set out in paragraphs 6670 of the Board's submissions are made out and that Mr Cramphorn's conduct amounts to a breach of the HBC Act rather than negligence. Had the Board alleged that a disciplinary matter existed under s 53(1)(a)(ii) of the BSR Act, then a disciplinary matter might well have been made out. However, since the allegation is of negligence, the Tribunal is not satisfied that a disciplinary matter has been made out in relation to allegations 5 and 9.
Failure to properly manage and supervise
73 In Builders' Registration Board of Western Australia and Elliott [2009] WASAT 44 at [4] the Tribunal stated that:
[T]he obligation to ensure that management and supervision was sufficient to ensure that the whole of the building work was carried out in a proficient and workmanlike manner meant that not only must the building work when completed be free of any defect, other than of an insignificant nature, but also that the method of carrying out the building work was proficient and workmanlike.
74 The works were not completed. The Tribunal finds that a disciplinary matter exists in respect of Mr Cramphorn pursuant to s 51(1)(f) of the BSR Act.
Penalty
75 Pursuant to s 58(1)(i) of the BSR, the Board seeks that Mr Cramphorn is fined $25,000.
76 Pursuant to s 58(3) of the BSR Act, if a proceeding is commenced by an allegation under the BSR Act against a person who was a registered building service provider when the disciplinary matter allegedly occurred, but who is no longer a registered building service provider, the only powers the Tribunal may exercise are to:
(i) Decline to make an order (s 58(1 )(a) BSR Act);
(ii) Caution or reprimand the provider (s 58(1 )(c) BSR Act); or
(iii) Order the provider to pay the Building Commissioner a penalty of a fine not exceeding $25,000 (s 58(1 )(i) BSR Act).
77 The Tribunal's ability to impose a fine on Mr Cramphorn pursuant to s 58(1)(i) of the BSR Act is only in relation to a finding on a ground referred to in s 53(1)(c) to (m) of the BSR Act.
78 Allegations 1 and 2 of the Board's grounds for orders sought are not susceptible to a fine for the purposes of imposing a penalty.
79 Where there is a choice of sanctions, the Tribunal will choose that sanction which maximises the protection of the public (Quinn v Law Institute of Victoria [2007] VSCA 122 at [31]).
80 In determining an appropriate sanction, in Legal Profession Complaints Committee and Wells [2014] WASAT 112 (S) at [20] the Tribunal set out a list of twelve matters for consideration:
1) any need to protect the public against further misconduct by the practitioner (Legal Profession Complaints Committee and Amsden [2014] WASAT 57 (S) (Amsden (S)) at [8]; Foreman at 440C; Hamman at [77]);
2) the need to protect the public through general deterrence of other practitioners from similar conduct (Johnsonat [103]; Hammanat [77]);
3) the need to protect the public and maintain public confidence in the profession by reinforcing high professional standard and denouncing transgressions and thereby articulating the high standards expected of the profession (Amsden(S)) at [8]; Foremanat 444F; and Hammanat [77] and at [79]), such that, even where there may be no need to deter a practitioner from repeating the conduct, the conduct is of such a nature that the Tribunal should give an emphatic indication if its disapproval (Craig v The MedicalBoard of South Australia[2001] SASC 169 at [64]; Johnsonat [103]);
4) in the case of conduct involving misleading conduct, including dishonesty, whether the public and fellow practitioners can place reliance on the word of the practitioner (Johnsonat [109]; Foremanat 445B - 445G);
5) whether the practitioner has breached any:
(a) Act;
(b) Regulations;
(c) Guidelines or Code of Conduct, issued by the relevant professional body; and
(d) whether the practitioner has done so knowingly
6) whether the practitioner's conduct demonstrated incompetence, and if so, to what level;
7) whether or not the incident was isolated such that the Tribunal can be satisfied of his or her worthiness or reliability for the future (Foremanat 442E - 442G; New South Wales Bar Association vEvatt(1968) 117 CLR 177 at 183; Council of the Law Society(NSW) v A Solicitor[2002] NSWCA 62 (A Solicitor [2002] NSW) at [80]; Chamberlain v Law Society of the Australian Capital Territory (1993) 118 ALR 54 at 62 and 63);
8) the practitioner's disciplinary history (Legal Profession v O'Halloran[2013] WASC 430 at [93]);
9) whether or not the practitioner understands the error of his ways, including an assessment of any remorse and insight (or a lack thereof) shown by the practitioner, since a practitioner who fails to understand the significance and consequences of misconduct is a risk to the community (Law Society of New SouthWalesv Walsh[1997] NSWCA 185 per Beazley JJA (Walsh); LegalProfessionComplaints Committeev Lashansky[2007] WASC 211 (Lashansky) at [31] - [52] and (second) at [35]; Amsden(S)at [8]; Foremanat 444E; Loveat [9]);
10) the desirability of making available to the public any special skills possessed by the practitioner;
11) the practitioner's personal circumstances at the time of the conduct and at the time of imposing the sanction. However, the weight given to personal circumstances cannot override the fundamental obligation of the Tribunal to provide appropriate protection of the public interest in the honesty and integrity of legal practitioners and in the maintenance of proper standards of legal practice (Love at [59]); and
12) The Tribunal may consider any other matters relevant to the practitioner's fitness to practise and other matters which may be regarded as aggravating the conduct or mitigating its seriousness (A Legal Practitioner (S) at [25]). In general, mitigating factors such as no previous misconduct or service to the profession are of considerably less significance than in the criminal process because the jurisdiction is protective not punitive (Walsh).
1. Is there a need to protect the public against further misconduct by Mr Cramphorn?
81 Trust and communication is a fundamental aspect of the relationship between a builder and a client. The public must have confidence that those who are registered to undertake building work are competent and possess the requisite skills.
82 At sites 2, 3 and 4, the owners had the same experience with Mr Cramphorn. Work commenced and progressed well, and then it completely ceased and the owners could not establish any contact with Mr Cramphorn.
83 All owners were forced to seek the intervention of the Building Commission in an attempt to have their work completed. Mr Cramphorn has ignored and failed to comply with orders issued by the Building Commissioner.
84 Mr Cramphorn's conduct and disregard for the owners and the orders of the regulatory body is evidence of a need to protect the public against further misconduct by him.
2. Is there a need to protect the public through general deterrence of other building service providers?
85 The reasons generally expressed in relation to the need to protect the public from further misconduct by Mr Cramphorn also apply to the need to protect the public through general deterrence of other providers from similar conduct.
3. Is there a need to protect the public by reinforcing high professional standards and denouncing transgressions?
86 Any penalty must reflect the need to maintain high professional standards.
4. Dishonesty
87 No issues of dishonesty arise in this case.
5. Breach of an Act, Regulations, Guidelines or Code of Conduct
88 Mr Cramphorn has been convicted of an offence under the BSCRA Act.
89 Mr Cramphorn has failed to comply with HBWC Remedy Orders of the Building Commissioner under the BSCRA Act.
90 Mr Cramphorn has contravened provisions of the HBC Act. Although, for the reasons stated above, Mr Cramphorn's breach of the HBC Act has not been made out for the purposes of a finding of a disciplinary matter, it is reflective of his general attitude to compliance with his legal obligations.
6. Incompetence
91 Allegation 6 demonstrates that Mr Cramphorn's conduct was incompetent in the performance of building work. Various defect items were identified at site 2 that resulted from Mr Cramphorn's lack of competence.
7. Was the incident isolated?
92 Four sites were affected by Mr Cramphorn's conduct. His conduct was not isolated and was persistent.
8. Mr Cramphorn's disciplinary history
93 Mr Cramphorn has no previous disciplinary history.
9. Whether or not Mr Cramphorn understands the error of his ways, including an assessment of any remorse and insight (or a lack thereof) shown by him
94 Mr Cramphorn has not participated in the proceedings; therefore there is little information on which to form a conclusion that Mr Cramphorn understands the error of his ways.
10. Are there any special skills possessed by Mr Cramphorn?
95 Mr Cramphorn does not possess any special skills that would influence any penalty to be imposed.
11. Mr Cramphorn's personal circumstances
96 As Mr Cramphorn has failed to participate in these proceedings, it is impossible to ascertain any personal circumstances that could be considered mitigatory of his conduct.
12. Are there any other matters related to Mr Cramphorn's fitness to practice?
97 There is no evidence of any other matters related to Mr Cramphorn's fitness to practice.
98 Given that Mr Cramphorn's building practitioner and building contractor licences have expired, the only appropriate penalty is the imposition of a fine.
99 The Board accepts that Mr Cramphorn is presently bankrupt. Irrespective of the efficacy of the imposition of a fine, the Board contends that the imposition of a financial penalty is the only appropriate sanction available to the Tribunal in the circumstances, and is justified in order to be a substantial deterrent to other industry participants. The Tribunal agrees with the Board's submission.
100 Allegations 1 and 2 are not susceptible to a fine as allegations 5 and 9 were not proven. There are six matters for which a fine can be imposed.
101 It is appropriate to impose a global penalty. Having regard for the fact that the maximum penalty is $25,000 and that Mr Cramphorn's conduct was not of the worst kind but still serious, a fine of $20,000 is appropriate.
Costs
102 Section 87(1) and s 87(2) of the State Administrative Tribunal Act2004 (WA) provides:
(1) Unless otherwise specified in this Act, the enabling Act, or an order of the Tribunal under this section, parties bear their own costs in a proceeding of the Tribunal.
(2) Unless otherwise specified in the enabling Act, the Tribunal may make an order for the payment by a party of all or any of the costs of another party or of a person required to produce a document or other material on the application of the party under section 35.
103 In Western Australian Planning Commission v Questdale Holdings Pty Ltd [2016] WASCA 32, Murphy JA (Martin CJ and Corboy J agreeing) stated:
46 The effect of s 87(1) of the SAT Act is, relevantly, that each party in proceedings before the Tribunal is to bear its own costs, unless the Tribunal otherwise orders.
..
51 Section 87(2) is to be construed in the context that the legal rationale for an order for costs is not to punish the person against whom the order is made, but to compensate or reimburse the person in whose favour it is made. That rationale is evident in s 87(3) of the SAT Act. Accordingly, even in a statutory context where the presumptive position is that no costs will be ordered, generally speaking, the question is whether, in the particular circumstances of the case, it is fair and reasonable that a party should be reimbursed for the costs it incurred. The onus is on the party seeking an order in its favour.
104 In Medical Board of Western Australia and Roberman [2005] WASAT 81 (S) at [30], the Tribunal stated:
Section 87(2) gives the Tribunal the discretion to order the payment by a party of all or any of the costs of another party. Where a regulatory authority successfully brings a complaint of conduct which, if proved, justifies disciplinary action by the Tribunal, there will usually be a strong case for the exercise of that discretion in favour of the regulatory body. That is because such bodies perform a function which promotes the public interest, and usually with limited resources. The financial burden of bringing disciplinary action if the body had no capacity to recover some or all of its costs may be such as to provide a disincentive to bring disciplinary action, or when brought, to ensure that the allegations against the practitioner concerned are properly and thoroughly presented. It is in the public interest that such bodies have an expectation that, if the allegations are made out, the offending professional will meet or at least contribute to the costs incurred in bringing the application. The question of an award of costs is, of course, a matter of discretion to be exercised in the circumstances of each case.
105 Having considered all the circumstances, the Tribunal is satisfied that Mr Cramphorn should pay the Board's costs since the Board was acting in the public interest in a disciplinary matter. It is fair and reasonable that the Board should be reimbursed for the costs it has incurred.
106 Accordingly, Mr Cramphorn should pay Board's costs of $3,200.
Orders
1. The Tribunal finds that a disciplinary matter exists in that:
(a) after registration Mr Cramphorn was convicted of an offence against the Building Services (Complaints Resolution and Administration Act) 2011 (WA); s 53(1)(a)(ii) of the Building Services (Registration) Act 2011 (WA);
(b) Mr Cramphorn does not satisfy the financial requirements pursuant to s 18(1)(b) of the Building Services (Registration Act) 2011 (WA) Act; s 53(1)(b) of the Building Services (Registration Act) 2011 (WA);
(c) Mr Cramphorn failed to comply with an order of the Building Commissioner under the Building Services (Complaints Resolution and Administration Act) 2011 (WA); s 53(1)(l) of the Building Services (Registration Act) 2011 (WA); and
(d) Mr Cramphorn if a building service contractor, failed to ensure that a building service carried out by him had been properly managed and supervised; s 53(1)(f) of the Building Services (Registration Act) 2011 (WA).
2. Mr Cramphorn is fined $20,000.
3. Mr Cramphorn is to pay the Building Services Board's costs of $3,200.
I certify that this and the preceding [106] paragraphs comprise the reasons for decision of the State Administrative Tribunal.
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JUSTICE J C CURTHOYS, PRESIDENT
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